Navtej Singh Johar v. Union of India

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Navtej Singh Johar v. Union of India
Emblem of the Supreme Court of India.svg
CourtSupreme Court of India
Full case nameNavtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice
Decided6 September 2018
Citation(s)W. P. (Crl.) No. 76 of 2016
D. No. 14961/2016
Legislation cited
Case history
Prior action(s)Suresh Kumar Koushal v. Naz Foundation
Appealed fromSupreme Court of India
Court membership
Judge(s) sittingDipak Misra, CJI; Rohinton Fali Nariman, J.; A. M. Khanwilkar, J; D. Y. Chandrachud, J; and Indu Malhotra, J
Case opinions
Decision byDipak Misra, R. F. Nariman, D. Y. Chandrachud and Indu Malhotra
PluralityDipak Misra, joined by A. M. Khanwilkar
ConcurrenceRohinton Fali Nariman, Indu Malhotra, D. Y. Chandrachud
This case overturned a previous ruling
Suresh Kumar Koushal v. Naz Foundation by Supreme Court of India

Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalised all consensual sex among adults in private, including homosexual sex.[1]

The court was asked to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which, among other things, criminalised homosexual acts as an "unnatural offence". While the statute criminalises all anal sex and oral sex, including between opposite-sex couples, it largely affected same-sex relationships.[2] On 6 September 2018, the court unanimously declared the law unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex".[3] The verdict was hailed as a landmark decision for LGBT rights in India, with campaigners waiting outside the court cheering after the verdict was pronounced.[2]

Portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.[4]

Background[edit]

On 27 April 2016, five people filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the issues which they raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013 Koushal v. Naz case, in which the Supreme Court had upheld the constitutionality of Section 377. The Naz had been earlier referred to a five-judge bench in order to decide whether the curative petition could be accepted for consideration. The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur.[5] This case was the first instance wherein the petitioners argued that they had all been directly aggrieved because of Section 377, alleging it to be a direct violation of fundamental rights.[6][7]

Trial[edit]

The petition was first placed before Justice S. A. Bobde and Justice A. K. Bhushan on 29 June 2016. An order was passed to post the matter before the Chief Justice of India, Justice Dipak Misra for appropriate orders since a curative petition was already pending before the constitution bench.[8][9] On 8 January 2018, the case (Navtej Singh Johar and others v. Union of India) was listed to be heard by the Chief Justice's bench, which passed an order stating that the case would be heard by a constitution bench.[10][11][12]

The matter was heard from 17 January 2018 by a five-judge constitution bench of the Supreme Court.[13] On 10 July 2018, the SC commenced hearing of the pleas challenging the constitutionality of section 377.[14][15][16] The bench ended its hearing on 17 July and reserved its verdict, asking for both sides to submit written submissions for their claims by 20 July.[17]

Judgment[edit]

The judgement of the Supreme Court of India of 6 September 2018 overturning its own verdict in Suresh Kumar Koushal vs. Naz Foundation hence declaring all private consensual sexual acts between adults legal including homosexual ones.

On 6 September 2018, the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional.[2][18] This decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which the court upheld the law.[2][19] However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.[4]

The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Misra pronounced that the court found "[c]riminalising carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional".[2] The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India.[20] It held that "the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation".[20] The judgement also made note that LGBT community is entitled to equal citizenship and protection under law, without discrimination.[20]

Public opinion and specific reactions[edit]

The Government of India, decided to abstain from the hearings and had left the matter to the "[w]isdom of the [c]ourt".[21]

Political parties and organisations[edit]

The largest constituent party of the National Democratic Alliance, a right-wing Hindu nationalist coalition, currently having a majority in the Lok Sabha (House of the People), the Bharatiya Janata Party (BJP), was one of the few parties which officially stayed silent on the verdict.[22][23] Several party members did express their personal opinions on the subject, including the BJP spokesperson G. V. L. Narasimha Rao, who said that any decision on the matter "takes in sync with the jurisprudential developments on gay rights the world over would be welcome".[24] Meanwhile, Subramanian Swamy, a Rajya Sabha (Council of the States) member of the BJP, attacked the decision, questioning if the court will legalise sexual intercourse with animals in the name of personal liberty.[25] He was of the view that the decision could be overruled "[i]f it leads to excesses, including paedophilia, gay bars, increase in HIV cases, etc."[26] The Prime Minister of India, Narendra Modi, has a record of saying relatively little about LGBT rights compared to other socio-political issues, and refused to comment on the same.[18]

The right-wing organisation Rashtriya Swayamsevak Sangh conveyed its agreement with the court's verdict as it didn't believe homosexuality was a crime, but did label the orientation as "unnatural".[27] In January 2018, the BJP's coalition partner, the Shiv Sena had supported legalisation, with its member and a member of parliament in Lok Sabha for Mumbai South, Arvind Sawant Ganpat saying, "They have the right to live the way they want. What can we say on it."[24]

The largest opposition party in India, the Indian National Congress of the United Progressive Alliance, issued a statement welcoming the ruling. The organisation remarked that the judgement should bring about "the beginning of a more equal and inclusive society".[2] This was in contrast to its previous objection in the same case in 2009 when it was in government during the initial Naz Foundation case, stating that gay sex was 'immoral' and that it cannot be decriminalised.[28]

Overseas[edit]

In terms of non-governmental organisations, the group Human Rights Watch welcomed what happened, with its South Asia director labelling the judgement as "hugely significant".[18] Amnesty International also praised the ruling.[29] The United Nations welcomed the judgement, hoping that it will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons.[30]

Global News suggested that similar colonial laws in South Asia, modelled on India's Section 377, could be declared unconstitutional following this verdict. The agency stated that the ruling "emboldened activists in neighbouring countries".[31] In terms of LGBT rights in Sri Lanka, a similar law in that nation, which has not been enforced in decades, was declared unenforceable by its Supreme Court and is effectively dormant. However, differences in how constitutional matters are handled mean that the law cannot be removed without the consent of the electorate.[32][31] Global News also noted that the nations of Bangladesh, Myanmar, and Pakistan face problems with LGBT people suffering from public discrimination, outside of the context of laws restricting homosexuality.[31]

Simon Chesterman, dean of the National University of Singapore Faculty of Law, congratulated India on the verdict in a Facebook post. In response to Chesterman's post, Singaporean diplomat Tommy Koh wrote on Facebook that Singaporean LGBT activists should take the opportunity to overturn Section 377A of the Penal Code,[33] a position supported by Chief of Government Communications Janadas Devan. Later, on September 10, disc jockey and producer Johnson Ong Ming filed a lawsuit in court against Section 377A.[34] However, Law and Home Affairs Minister K. Shanmugam stated that “[t]his issue relates to social mores, values - so can you impose viewpoints on a majority when it so closely relates to a social value system?”[35]

The famous quotes from the judgement:[36]

Chief Justice Deepak Mishra and Justice Khanwilkar:[36]

"I am what I am, so take me as I am"

"The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one‘s signature and self-determined design"

"The sustenance of identity is the filament of life. It is equivalent to authoring one‘s own life script where freedom broadens everyday. Identity is equivalent to divinity."

"Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society"

"We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination."

"Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her."

" All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people. To change the societal bias and root out the weed, it is the foremost duty of each one of us to stand up and speak up against the slightest form of discrimination against LGBTs that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life ― as the herald of a New India ― to a more inclusive society."

Justice Dr. DY Chandrachud:[36]

"The lethargy of the law is manifest yet again"

"A hundred and fifty eight years ago, a colonial legislature made it criminal, even for consenting adults of the same gender, to find fulfillment in love. The law deprived them of the simple right as human beings to live, love and partner as nature made them."

"The human instinct to love was caged by constraining the physical manifestation of their sexuality. Gays and lesbians2 were made subordinate to the authority of a coercive state.A charter of morality made their relationships hateful. The criminal law became a willing instrument of repression. The offence would be investigated by searching the most intimate of spaces to find tell-tale signs of intercourse. Civilisation has been brutal "

"Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence. The law has imposed upon them a morality which is an anachronism. Their entitlement should be as equal participants in a society governed by the morality of the Constitution. That in essence is what Section 377 denies to them. The shadows of a receding past confront their quest for fulfillment."

"We must, as a society, ask searching questions to the forms and symbols of injustice. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society. Does the Constitution allow a quiver of fear to become the quilt around the bodies of her citizens, in the intimacies which define their identities? If there is only one answer to this question, as I believe there is, the tragedy and anguish which Section 377 inflicts must be remedied."

" Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict. Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril"

"Sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age. The impact of Section 377 has travelled far beyond the punishment of an offence. It has been destructive of an identity which is crucial to a dignified existence"

"It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution. Section 377 of the Penal Code is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. The constitutional values of liberty and dignity can accept nothing less."

Justice Indu Malhotra:[36]

"Sexual orientation is innate to a human being. It is an important attribute of one’s personality and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21."

"Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence."

"A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest."

"History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’"

Justice Nariman:[36]

"The love that dare not speak its name” is how the love that exists between same-sex couples"

"We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment."

See also[edit]

Other landmark decisions worldwide[edit]

References[edit]

  1. ^ Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India) ("21. CONCLUSION i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion."). Text
  2. ^ a b c d e f "Historic India ruling legalises gay sex". BBC News. 6 September 2018. Retrieved 6 September 2018.
  3. ^ Safi, Michael (2018-09-06). "Campaigners celebrate as India decriminalises homosexuality". The Guardian. Retrieved 2018-09-07.
  4. ^ a b Pundir, Pallavi. "I Am What I Am. Take Me as I Am". Vice News. Retrieved 8 September 2018.
  5. ^ "Gay sex decriminalised: History owes apology to LGBT community and kin, says Supreme Court". The Indian Express. Express Web Desk. New Delhi: Indian Express Group. September 6, 2018. OCLC 70274541. Retrieved September 6, 2018.
  6. ^ Ganz, Kian. "Read the wonderful new 377 challenge by 5 out-and-proud celebrities that'll hit SC today". Legallyindia.com. Retrieved 15 January 2018.
  7. ^ "Navtej Singh Johar & ors. vs. UoI: Supreme Court petition 29 June 2016 – Orinam Section 377". Orinam Section 377. 29 June 2016. Retrieved 15 January 2018.
  8. ^ FP Staff (29 June 2016). "Section 377: Supreme Court refers fresh petition on homosexuality to CJI". Firstpost. Retrieved 6 September 2018.
  9. ^ "Supreme Court Order - Navtej Johar vs Union of India - 29 June 2016" (PDF). Archived from the original (PDF) on 15 January 2018.
  10. ^ Taneja, Richa (8 January 2018). "Section 377: All you need to know". New Delhi Television Limited. Retrieved 6 September 2018.
  11. ^ India TV News Desk (6 September 2018). "Section 377 verdict: What has happened so far in the case". India TV. Retrieved 6 September 2018.
  12. ^ "Supreme Court Order - Navtej Johar vs Union of India - 8 January 2018" (PDF). Archived from the original (PDF) on 15 January 2018.
  13. ^ "All You Want To Know About 8 Cases Listed For Hearing By Constitution Bench From Wednesday (17 Jan) [Read Notice] | Live Law". Live Law. 15 January 2018. Retrieved 15 January 2018.
  14. ^ Correspondent, Legal; Correspondent, Legal (10 July 2018). "SC to hear pleas to scrap Section 377". The Hindu. ISSN 0971-751X. Retrieved 10 July 2018.
  15. ^ Bench, Bar & (10 July 2018). "Section 377 hearing: Live Updates from the Supreme Court". Bar & Bench. Retrieved 10 July 2018.
  16. ^ "Fall of Sec. 377 will embolden LGBTQ people: CJI". Clpr.org.in.
  17. ^ TNM Staff (17 July 2018). "Marathon hearing on Section 377 concludes, SC reserves verdict". The News Minute. Retrieved 6 September 2018.
  18. ^ a b c Gettleman, Jeffrey; Schultz, Kai (6 September 2018). "India Strikes Down Colonial-Era Law Against Gay Sex". The New York Times. Retrieved 6 September 2018.
  19. ^ "Homosexualität ist in Indien nicht mehr strafbar". sueddeutsche.de (in German). 6 September 2018. ISSN 0174-4917. Retrieved 6 September 2018.
  20. ^ a b c Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India). Text
  21. ^ "Section 377 Supreme Court hearing: Centre defers to 'wisdom of court'; Menaka Guruswamy says IPC section violates Article 15". Firstpost.com. Retrieved 2018-09-08.
  22. ^ "Section 377: BJP Has Nothing To Say About Supreme Court's Historic Verdict Legalizing Gay Sex". HuffPost India. 2018-09-06. Retrieved 2018-09-08.
  23. ^ "BJP mum on SC verdict on Section 377". Deccan Herald. 2018-09-07. Retrieved 2018-09-08.
  24. ^ a b "Ruling and Opposition parties on the same side against Section 377". The Hindu. Special Correspondent. 2018-01-08. ISSN 0971-751X. Retrieved 2018-09-10.
  25. ^ "Subramanian Swamy on Twitter". Twitter. Retrieved 2018-09-08.
  26. ^ "'Step towards self-destruction': Far-right comes out against Supreme Court's Section 377 verdict". Firstpost.com. Retrieved 2018-09-08.
  27. ^ "Homosexuality not a crime, but unnatural: RSS". The Times of India. Retrieved 2018-09-08.
  28. ^ "Gay sex is immoral and can't be decriminalised, Govt tells HC". Outlookindia.com. Retrieved 14 September 2018.
  29. ^ "India decriminalises gay sex". Amnesty.org.uk.
  30. ^ "United Nations in India welcomes Supreme Court judgment on Section 377". UN India. Retrieved 2018-09-08.
  31. ^ a b c "India legalized homosexuality, but many of its neighbours haven't". Global News. Retrieved 2018-09-10.
  32. ^ "SL committed to non-discrimination based on sexual orientation: Nerin Pulle". Dailymirror.lk. Retrieved 14 September 2018.
  33. ^ "Inspired by India, veteran Singapore diplomat calls for gays to challenge sex ban". Reuters. 7 September 2018. Archived from the original on September 2018.
  34. ^ "After Section 377 verdict in India, Singapore DJ files court challenge against law banning gay sex". Firstpost.com. Retrieved 14 September 2018.
  35. ^ "Singapore society has to decide which direction it wants to take on laws against gay sex: Shanmugam". Channelnewsasia.com. Retrieved 14 September 2018.
  36. ^ a b c d e "Supreme court judgement of section 377" (PDF).

External links[edit]

  • Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India). Text